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Scottish Court of Session Decisions >>
Helen Stevenson v Colquhoun Grant. [1767] Mor 2762 (27 July 1767)
URL: http://www.bailii.org/scot/cases/ScotCS/1767/Mor0702762-007.html Cite as:
[1767] Mor 2762
An arrester having obtained from a Judge a warrant to sell; found the goods could not, in that state, be poinded, being field to be in manibus curiæ.
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In a furthcoming upon an arrestment, the arrestee having depend upon certain goods in his hands belonging to the common, debtor, the Lord Ordinary granted warrant to the inferior judge to sell the goods for behoof of the arrester; but, before the order was put in execution, the goods were poinded and carried off by another creditor. This fact produced an action for the value of the goods, at the instance of the arrester against the poinder. The Lord Ordinary having sustained the defence of lawfully poinding, the interlocutor was, altered by the Court, who sustained the action, and repelled the defence, upon the following ground;—supposing goods to be in manibus curiæ, the Court cannot be deprived of its possession at short hand by a poinding. The goods were here under the power and direction of the Court, without which the Court could not issue a warrant for sale.
This argument appears to me inconclusive. In the first place, I see not clearly why even a proper sequestration in the hands of the Court of Session should exclude a poinding which proceeds upon the King's authority. Secondly, If a warrant to sell in a process of furthcoming be equivalent to a sequestration, so must a warrant for arrestment; for both warrants proceed equally upon the supposition that the goods are under the power and direction of the Court. And yet it was never thought that an arrestment could obstruct a poinding. The judgment, however, is right upon a principle of equity, that undoubtedly moved the Judges, though it was not brought into the reasoning, namely, That an inchoated attachment by one creditor ought to bar all others; which is laid down and inforced in the principles of equity.
